Monday, December 8, 2008

Federalist 16

As we look forward with enormous expectations to the inauguration of President Barack Obama, perhaps the key idea in Federalist 16 is expressed in the words with which Alexander Hamilton leaves the reader: "It would be idle to object to a government, because it could not perform impossibilities." But for the nineteenth century, the most important idea lay in Hamilton's insistence that the government of the United States not be compact between individual states, but that it "carry its agency to the persons of the citizens."

This was a crucial distinction. In his famous "Reply to Hayne" in January 1830, Daniel Webster said: "This leads us to inquire into the origin of this Government, and the source of its power. Whose agent is it? Is it the creature of the State Legislatures, or the creature of the People? If the Government of the United States be the agent of the State Governments, then they can control it...; if it be the agent of the People, then the People alone can control it..."

The idea that the federal government was a government of all the people was important, because Hamilton foresaw, and Webster experienced, the attempts of the States to assert their own power in circumvention of federal legislation. In the Jacksonian era, states rights advocates like John C. Calhoun went so far as to argue that state legislatures should have the power to declare federal laws unconstitutional—or, in the terminology of the day, to "nullify" them. Thus, if South Carolina disliked a tariff passed by Congress, it could declare that the tariff was not binding upon the state of South Carolina.

Hamilton foresaw that such thinking could eventually lead to dissolution of the union and civil war, as some states banded together to force others into compliance with federal law. His solution was two-fold: create a government that appeals directly to the people, and is binding upon them without the intervention of the state governments; and establish the principle of judicial review. The courts, not the state legislatures, should decide on the constitutionality of federal laws. As Hamilton put it in Federalist 16: "The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the union, like that of each state, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support, those passions, which have the strongest influence upon the human heart."

Judicial review—a principle generally associated with the 1803 Supreme Court verdict in Marbury v. Madison—was actually on Hamilton's docket as early as 1784, three years before he participated in writing the Federalist Papers, when he argued the case of Rutgers v. Waddington before a court in New York City. In this case, Hamilton successfully argued that New York's Trespass Act (1783), which allowed patriots to recover damages from Tories, violated the Treaty of Paris, which had ended the Revolution and had been ratified by Congress. The overarching question was whether an act of Congress—in this case, a treaty—had precedence over state law.

As Ron Chernow writes in his excellent biography of Hamilton: "At bottom, Rutgers v. Waddington addressed fundamental questions of political power in the new country. Would a treaty ratified by Congress trump state law? Could the judiciary override the legislature? And would America function as a true country or as a loose federation of states? Hamilton left no doubt that states should bow to a central government: 'It must be conceded that the legislature of one state cannot repeal the law of the United States.'"